BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Morning Report – item reported on the Australian Government's proposal to legislate for the mandatory blocking of particular websites – contained comment from a representative of the internet civil liberties group Electronic Frontiers Australia – allegedly unbalanced and inaccurate

Findings
Standard 4 (controversial issues – viewpoints) – item did not discuss a controversial issue of public importance to New Zealand – not upheld

Standard 5 (accuracy) – interviewee qualified his statements – not upheld

This headnote does not form part of the decision.

Broadcast

[1] An item broadcast during Radio New Zealand National's Morning Report programme on Tuesday 28 October 2008 reported on the Australian Government’s plan to legislate for the blocking of websites it deemed to be illegal or inappropriate. A spokesperson of the online civil liberties group Electronic Frontiers Australia (EFA), Dale Clapperton, provided comment criticising the Australian Government’s internet filtering proposal.

[2] The presenter introduced the item by saying:

A controversial plan to censor the internet in Australia is causing uproar among civil liberties groups. The Federal Government plans to block any sites which it deems illegal or inappropriate. Other countries including New Zealand and Britain already have security systems in place. However, they’re voluntary and linked predominantly to child pornography.

Dale Clapperton from online civil liberties group Electronic Frontiers Australia says the outrage isn’t just limited to the cyber community.

[3] Mr Clapperton stated that there was "tremendous opposition" among average Australians to the proposal and noted the Australian Opposition believed it was "half-baked" and "won't work". When questioned by the presenter whether the proposal would "put Australia out there on a limb" when compared to how other nations filter the internet, he said:

It certainly will. We are not aware of any Western democracy which has actually legislated that its ISPs have to conduct any level of filtering whether for child pornography or any other type of material. Certainly, there are some countries where some ISPs have elected to filter against a blacklist of child pornography. But in Australia, the blacklisting which is proposed by the Government is going to be much much broader than just child pornography.

[4] Mr Clapperton went on to comment on the Government's proposed level of filtering and its blacklist for banned websites. The presenter then said, "doing something to really make sure people can't access child pornography seems like a good idea". He responded by saying:

It might seem like a good idea, provided it would work. And all the evidence in overseas countries which have looked at doing this or attempted it, is that it doesn’t really work... Blacklisting a relatively small number of websites will do nothing to stop the people in this world who are determined to access that type of information...

[5] Mr Clapperton concluded by saying that he had “no confidence” that the blacklist would stay limited to websites containing child pornography.

Complaint

[6] Media Matters in NZ Inc (Media Matters) made a formal complaint to Radio New Zealand Ltd (RNZ), the broadcaster, alleging the item lacked balance and factual accuracy.

[7] The complainant contended that Mr Clapperton was a lobbyist for free internet access and that his "claim that there is a public uproar over the Australian Government's proposed ISP legislation to block sites that carry child pornography" was "not supported by our inquiries".

[8] Media Matters noted Mr Clapperton's comments that the censorship proposal was unworkable and that "no Western democracy had such laws". The complainant argued that Mr Clapperton's comments were inaccurate, because laws relating to websites containing child pornography did exist in some countries and had proven results. It believed it was "nonsense" that censoring the internet was an assault on the public's right to know, and that the "public had a right to know their kids will not be stalked on the internet and groomed for sex".

[9] The complainant argued that "to let Mr Clapperton loose without any vigorous challenge to his various self-interested assertions" was unacceptable. Further, it considered "it is indeed a shame that [RNZ] did not think to localise the content" of the broadcast by having "a single New Zealand perspective on this growing international concern".

Standards

[10] RNZ assessed the complaint under Standards 4 and 5 of the Radio Code of Broadcasting Practice. They provide:

Standard 4 Controversial Issues - Viewpoints

When discussing controversial issues of public importance in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or reasonable give opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Standard 5 Accuracy

Broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming:

• is accurate in relation to all material points of fact; and/or
• does not mislead.

Broadcaster's Response to the Complainant

[11] With respect to Standard 4, RNZ contended that "while the issue of child pornography is a controversial issue, whether the plan to introduce requirements for filtering software by the Australian Government meets the same criteria is a moot point". It argued "even if the latter topic could be considered a controversial one, coverage of the issue needs to be considered across the period of current interest which is ongoing".

[12] The broadcaster rejected the complainant's view that the content of the item should have been "localised", as the topic under discussion was "narrowly focused on the plan to introduce legislation in Australia and that is where it remained". It declined to uphold the complaint that the item was unbalanced.

[13] With respect to Standard 5 (accuracy), RNZ stated that it had accurately reported what Mr Clapperton had said and noted that he had prefaced his comments about internet filtering in Western democracies other than Australia by saying "we are not aware". This, the broadcaster contended, alerted the audience to the possibly limited nature of the comments made. RNZ went on to say "at the heart of [Mr Clapperton's] comments lay a concern about the possible broad application of the proposed legislation" to legitimate online activities.

[14] The broadcaster contended Mr Clapperton’s comments were qualified and the item did not contain any inaccuracies. RNZ declined to uphold the complaint that the item breached Standard 5.

Referral to the Authority

[15] Dissatisfied with RNZ's response, Media Matters referred its complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[16] The complainant stated that "our members are incensed that this person should be allowed to express his views concerning an Australian Government legislative proposal on New Zealand public radio, without a contrary view being expressed".

[17] Media Matters reiterated the contention that Mr Clapperton’s comments – that the Australian Government's proposal was unworkable and that no Western country had such laws – were inaccurate and should have been challenged. It stated that the European Union and United Nations had both been dealing with proposals to make the internet safer for children to use.

[18] The complainant also asserted that the broadcast had breached standards relating to good taste and decency and law and order.

Broadcaster's Response to the Authority

[19] RNZ noted that the complainant had raised the standards of good taste and decency and law and order in its referral to the Authority. It contended that, because these standards did not form part of the original formal complaint, the Authority did not have jurisdiction to consider them.

[20] The broadcaster pointed out that the presenter had challenged Mr Clapperton on his remarks about the filtering proposal by putting to him, “But the idea of doing something to really make sure that people can’t access child pornography seems like a good idea”. It maintained the item did not contain any inaccuracies.

Complainant's Final Submission

[21] With respect to the broadcaster's contention that the Authority should not consider the complainant's points relating to good taste and decency and law and order, Media Matters argued the standards had been raised in its formal complaint. The complainant pointed out that the formal complaint referred to "law and order issues (including youth crime) and to good taste and decency (we pointed out that child pornography was in fact illegal and that never the less children were being stalked and groomed for sex on the internet)".

[22] The complainant believed that the broadcaster had treated Mr Clapperton "as some kind of independent authority, rather than an advocate for a particular point of view". It stated that, from the outset, the contention was "that Mr Clapperton was permitted to have his version of the international situation...accepted without challenge or qualification".

[23] In summary, Media Matters argued that RNZ's response reflected a superficial grasp of the issues involved in the debate about internet standards, and an unwillingness to take account of all points of view. It maintained that, because child pornography was illegal, the media did not have "the unfettered right to say whatever they please about images which are distressing, disturbing or harmful, purely on the basis of media freedom".

Authority's Determination

[24] The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Preliminary Issue

[25] With respect to Media Matters' contention that it raised Standards 1 (good taste and decency) and 2 (law and order) in its formal complaint to RNZ, the Authority agrees with the broadcaster that these standards were not raised either explicitly or implicitly by the complainant in its original formal complaint. It notes that Media Matters specifically referred to "a lack of factual accuracy" and "balance", and those were the standards under which RNZ made its assessment. As a result, the Authority does not have jurisdiction to deal with the additional standards raised in the complainant’s referral.

Standard 4 (controversial issues – viewpoints)

[26] Standard 4 states that when controversial issues of public importance are discussed, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view in the same programme or in other programmes within the period of current interest. In the Authority’s view, the item subject to complaint offered a brief discussion about Australia’s proposed internet filtering legislation.

[27] The Authority finds that, while the issue of Australia's proposed internet filtering legislation may be a controversial issue in Australia, it is not, for the purposes of the balance standard, a controversial issue of public importance in New Zealand. The item did not refer to New Zealand at any time and there is currently no widespread debate in New Zealand about enacting similar legislation.

[28] Accordingly, the Authority finds that Standard 4 did not apply and it declines to uphold this part of the complaint.

[29] As an aside, the Authority observes that neither the item nor Mr Clapperton supported child pornography on the internet, or argued, as the complainant seems to suggest, for "the unfettered right to say whatever they please about images which are distressing, disturbing or harmful, purely on the basis of media freedom". The Authority agrees with RNZ that the nub of Mr Clapperton’s concerns was the possible broad application of the proposed legislation to legitimate online activities.

Standard 5 (accuracy)

[30] The accuracy standard requires broadcasters to make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact and does not mislead listeners.

[31] Media Matters argued that Mr Clapperton’s comments about internet legislation in other Western democracies were inaccurate, because laws relating to websites containing child pornography did exist in some countries and had "proven substantial results". The Authority notes that Mr Clapperton stated:

We are not aware of any Western democracy which has actually legislated that its ISPs have to conduct any level of filtering whether for child pornography or any other type of material. Certainly, there are some countries where some ISPs have elected to filter against a blacklist of child pornography. But in Australia, the blacklisting which is proposed by the government is going to be much much broader than just child pornography...

[32] On this occasion, the Authority is satisfied that Mr Clapperton’s comments were sufficiently qualified by prefacing them with "We are not aware...". Qualifying the statement in that manner made it clear to listeners that the comments were based solely on EFA's knowledge and experience about internet filtering in other Western democracies. Therefore, Mr Clapperton's comments were not statements of fact to which the accuracy standard applied.

[33] Accordingly, the Authority declines to uphold the complaint that the item breached Standard 5.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Joanne Morris
Chair
3 March 2009

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

1.  Media Matters in NZ's formal complaint – 30 October 2008
2. RNZ's response to the formal complaint – 2 December 2008
3. Media Matters in NZ's referral to the Authority – 15 December 2008
4. RNZ's response to the Authority – 9 January 2009
5. Media Matters in NZ's final submission – 26 January 2009